March 2007
To: Members of UK and Scottish Parliaments, State Parties to the
Nuclear Non-Proliferation Treaty, Civil Society Groups
From: Lawyers’ Committee on Nuclear Policy [1]

As a US-based organization, LCNP advocates that the US comply with
the legal obligations not to threaten or use nuclear weapons and
to negotiate their elimination in good faith. We make this contribution
to the current UK debate because the US supplies the missiles for
the UK Trident system, and because the UK now has the opportunity
to set an example of compliance with those obligations.

We urge the United Kingdom to take the lead in nuclear disarmament
by concluding that:

Threat or use of the UK variant of the US Trident is illegal
and criminal.

The UK’s unequivocal undertaking to eliminate its
nuclear arsenal requires that the UK not upgrade or replace the
Trident system.

A. Threat or use of the UK variant of the US Trident is illegal
and criminal because the obligations to conform to the intransgressible
rules and principles of humanitarian law cannot be reconciled with
Trident’s known and understood indiscriminate and uncontrollable
effects.

The UK/US Trident nuclear weapon system is designed and intended
to unleash vast heat, blast and radiation; the radiation will
cause immediately lethal and long-term carcinogenic, mutagenic
and teratogenic effects on human beings and other life forms that
cannot be controlled in space or time.

The current debate in the UK is over whether to build three
new Trident-armed nuclear-powered ballistic missile submarines
to replace the current four, each capable of carrying up to 16
of the 58 US supplied Trident II D5 submarine-launched ballistic
missiles. One UK submarine on patrol at any given time carries
48 operational 100 kiloton warheads, each of which threatens to
inflict eight times the heat, blast and radiation-caused death
and damage as the Hiroshima bomb. [2]

Threat or use of such a weapon of mass destruction is categorically
and universally prohibited in any circumstance by peremptory rules
and principles of humanitarian law and whether in offence or defence
is a war crime going far beyond the bounds of lawful war. This
body of positive law is summarized most authoritatively by the
International Court of Justice in its 1996 advisory opinion (ICJ
Op.).[3] The London Charter and the Nuremberg
Tribunals made it clear that those rules and principles preempt
contrary domestic law.

The recent White Paper (WP) [4] claims that
the Trident nuclear weapon system as a deterrent is legal or justifiable
because, among other reasons, “the UK would consider using
nuclear weapons only in self-defence or the defence of Britain’s
NATO allies and then only in extreme circumstances” (2-11).
The White Paper claims that the ICJ “rejected the argument
that such use would necessarily be unlawful”. However, the
ICJ held that the requirements of necessity, proportionality,
and humanitarian law must be met in all circumstances. Thus “a
use of force that is proportionate under the law of self-defence,
must in order to be lawful, also meet the requirements of the
applicable law in armed conflict which comprise in particular
the principles and rules of humanitarian law” (ICJ Op.,
§ 42).

The fundamental rules and principles of humanitarian law include:
a) "States must never make civilians the object of attack
and must consequently never use weapons that are incapable of
distinguishing between civilians and military targets" (ICJ
Op., § 78). A corollary is that it is prohibited to use weapons
that cause uncontrollable effects [1977 Protocol I to the Geneva
Conventions, Art. 51(4)]. Use of the UK/US Trident system is unlawful
per se because if targeted at military objects, the effects still
are indiscriminate and uncontrollable. b) “It is prohibited
to cause unnecessary suffering to combatants; it is accordingly
prohibited to use weapons causing them such harm or uselessly
aggravating their suffering" [ICJ Op., § 78; 1907 Hague
Convention IV, Art. 23(e)]. c) “If an envisaged use of weapons
would not meet the requirements of humanitarian law, a threat
to engage in such use would also be contrary to that law”
(ICJ Op., § 78). Since any use of a UK Trident warhead would
cause indiscriminate harm and unnecessary suffering, the threat
of such use is illegal. d) Reprisal/retaliation is not a justification
for use of the UK Trident system; humanitarian law applies in
that circumstance as others. Thus the Trial Chamber of the International
Criminal Tribunal for the Former Yugoslavia stated: "No circumstances
would legitimize an attack against civilians even if it were a
response proportionate to a similar violation perpetrated by the
other party."[5]

Any use of the UK/US Trident system would also violate the international
law of armed conflict by causing widespread, long-term and severe
damage to our common environment and contaminating neutral states,
and violate the right to life and other non-derogable human rights.

B. The UK’s unequivocal undertaking to eliminate its nuclear
arsenal under Article VI of the Nuclear Non-Proliferation Treaty
(NPT), given at the 2000 NPT Review Conference, requires that the
UK decide not to upgrade or replace the Trident system.

The US/UK Mutual Defence Agreements and renewal of Ministry
of Defence and Atomic Weapons Establishment Management Ltd contract
are material breaches of the UK’s obligation under Article
VI of the NPT. [6]

The UK cannot at once adhere to its obligations under international
customary and conventional law outlined above and rely on a lawless
security policy employing a “credible” nuclear deterrent
(WP 4-1) posing “a uniquely terrible threat” (WP 3-3)
to “deter threats anywhere in the world” (WP 4-4).

C. Practical and lawful solutions:

All states are legally obligated "to pursue in good
faith and bring to a conclusion negotiations leading to nuclear
disarmament in all its aspects under strict and effective international
control" (ICJ Op., § 105(2)F; NPT Art. VI). Contrary
to what the White Paper states (2-10), the fulfillment of such
an obligation cannot be deferred indefinitely because no timetable
has been set.

The Model Nuclear Weapons Convention developed by civil society
and circulated as a UN document provides a template for the global
prohibition and verified elimination of nuclear weapons.

Parliamentary debate on the UK Trident system replacement or
upgrade and contract renewal can include testimony of undeniable
effects and real costs of the Trident system from civil society,
including Hibakusha, participants in the Indigenous World Uranium
Summit, Navajo Nation, 30 Nov-2 Dec. 2006, and the US Alliance
for Nuclear Accountability. Non-violent/symbolic citizen action
to insist that the UK uphold existing law such as Faslane 365,
Trident Ploughshares, and Pit Stop Ploughshares, can be supplemented
by claims of breach of health, safety, welfare, and fiduciary
duties of government including responsibility for costs from mining,
testing, contamination, and waste.